I’ve been asked by different members of my HQ PRO training program a few different variations of the same underlying question: How do I protect the things I’m building? This is a bit of a touchy topic. Not only that, but it’s also a vast gray area for all parties. There are good reasons you might want to control your creations (or intellectual property – IP for short), and there are many good reasons why clients will generally try to formally own the IP of whatever you build for them. I thought we could approach this from a few common standpoints in a quick and dirty post that gives you my opinions and experience with things. I should say, I’m not a lawyer, so if you’re in doubt on a large project or have a lot of money on the line, consulting with a lawyer is a good thing, just make sure they’re a lawyer that’s familiar with our industry. This post might be a bit all over the place, but that’s really because there are a lot of factors at play.
Did you actually build anything??
This is a tough question to ask yourself. Especially since projects feel like huge undertakings, we innately feel like we’re building these complex and interesting things. But when it comes to the particulars of intellectual property (IP from now on), it’s a bit more of a specific question. The question you should ask yourself is “Did I build something novel?” In this case, “novelty” is not the relaxed definition we might use in conversation like “oh that’s so novel and fun! :)” but the actual definition of novel which is more so “something unique or genuinely new”. I bet you’re still thinking “well of course everything I do is new and unique!” but you have to start thinking about it in different terms.
Your creations might be novel in an artistic sense, but they may be not novel in any technical sense. And that’s the IP you’re generally trying to keep. You shouldn’t be too worried about the look or colours or composition of something, but the technical guts that drive it. That’s the IP all these companies are after. Because then they can conitnue to spin up new version of this thing, and if it goes viral and everyone copies them, they can start sueing people for copying their IP. And on your end of things, keeping the IP means you can create a turnkey product out of whatever you built, or re-use the same process and sell it to a bunch of clients. So what do we compare against to figure out if our thing is novel? Good question.
Prior Art + Standard Practice
You might have heard the expression “prior art” before and not really known what it means. It’s used heavily when it comes to IP related talk because that’s what you’re comparing against to determine if the technology solution you’re building is actually novel. If you took a shader from a research paper and implemented it in TouchDesigner and it’s the first time that’s ever happened, that might feel novel in the TouchDesigner world, but in the grand scheme, it’s based on the “prior art” (you can think of prior art as “work someone else already figured out”). So maybe you could argue that your technical IP is a unique implementation of that prior art in TouchDesigner, but you can immediately see why that starts to sound like something probably not worth fighting for (more on that later!!).
But then…(there’s a lot of “but then’s”…)…you would probably have to decide whether what you did would be considered a standard practice or not. If you took a research paper and implemented it into TouchDesigner and no one else referenced that research paper could mean there’s no prior art for that particular thing, but if you use the exact same GLSL TOP setup and port the code in exactly as everyone else would have give the research paper, it could be argued that it was standard practice. They could try to hire 5 other TD devs and give them the research paper and see what solution they make, and if they all end up with a very similar thing, that isn’t a good look for your novel IP. From what I understand, the standard practice weighs less than the prior art, but like I mention in a bit, it’s still a thing and a good opposing lawyer will absolutely try to flex it on you.
Will it even hold up in court?
Did I mention I’m not a lawyer? Just reminding you….but I’m almost certain the kinds of IP I mentioned above wouldn’t really have a strong case in court. Unless you’re really proving that you created something that would be a large jump or discovery or big research output, I think you’ll have a hard time defending it in court in a fashion that would clearly make you the winner of a case. The last thing you want is to be in court and both parties are basically 50/50 and the judge just flips a coin. The reason I mention the difficulty of this is that courts will often employ 3rd party “experts” to help decide what is prior art, standard practice, and what is novel. Not to disrespect the experts with the ” ” but they can often be imbalanced in background and/or very academic. There was a case in recent memory where John Carmack, the creator of Doom and a leader in computer games and graphics development, was sued because his rendering engine that he wrote from scratch after changing companies, was too similar to what he had written for the previous company. And who got the final decision in the case? An academic expert. And to no discredit, the academic expert said “ya those things look similar”, to which John Carmack replied “well how the f*** else would I do that thing???”. So even in high profile cases, things can get really wishy washy and fall into the hands of just some other tech guy who may have a background that isn’t relatable to ours and might just write off your technical IP as non-existent.
Let’s assume it did…can you afford it?
Let’s not beat around the bush here. Most clients are richer than you. So you should know right off the bat, their lawyers are probably going to be better than yours. They’re probably already locked and loaded and just itching for someone to pull the trigger on them to give them something exciting to do. This leads to the elephant in the room, can you actually afford a decent lawyer for what could be months to years of legal action? Most contractual agreements have the loser paying the winners legal fees, but that only kicks in after a winner is decided in court. If you are in court for 3-6 months, paying a lawyer 200$ an hour, you could easily spend at least $20,000 USD up front out of your own pocket, and while I haven’t been to court, from what I’ve heard, that would be a conservative guesstimate… A lot of the clients that would even actually take advantage of real technical IP are probably going to be relatively big companies that will give your lawyer hell and crank up your hours and drag out the case just to spite you.
Not worth it?
So after all these different topics and thoughts, the question I always come back to is “do you really care enough to lose other leverage points in a negotiation just to keep potential IP?” In some cases, if you’re doing genuine R&D and maybe working with researchers on a project in tandem, you may say “hell yes! stamp my name on that IP!!!!”. But to be honest, in what I’d estimte to be over 90% of projects, it’s just prior art and standard practices implemented in unique ways that make something that is creatively new but not technically novel at all. When I hear folks saying they’re fighting with the client over IP, I think about all the different things you could work with them on like better rates, better work hours, better travel accommodations even! And let’s be real here, as I mentioned earlier, the only real companies that are prepared to take advantage of tangible technical IP are going to be large companies, much larger than the dinky agencies that usually demand IP. The reason they demand IP is just so they can do the same install a few more times without paying you. Certainly a dick move, but probably not worth initiating legal action over (unless they’re giant gigs worth hundreds of thousands!).
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So what to do and what to expect?
The first thing is that you should expect almost every client will try to own the IP. It’s standard in our industry that IP travels up and everyone tries to gobble up IP. It’s like hungry hungry hippos, but linear…and turned 90 degrees….(full disclosure: I just got off an airplane and haven’t slept yet). You’re usually brought on as “Work for Hire” or you’ll find a “Work for Hire” cause on your contract. That’s just a non-threatening way of saying “we own everything you do going forward.” So if you’re expecting that everyone will try this, there are a few things you can try more specifically.
- Decide on a case by case basis whether it’s something even worth bringing up. Think about whether you actually ACTUALLY made something novel and unique that would be considered technical IP. Part of your decision should be that you might lose the gig in some situations if you demand IP, because for some large companies it’s non-discussion point. It’s part of their mandate or whomever hired them mandated all the IP goes up, and if it doesnt, they simply can’t hire you.
- Use it as leverage to negotiate other things for yourself. This is something most people don’t think about. You read #1 above and think it’s just black and white, fight or surrender, but it’s much more subtle than that. You could create a narrative about how important IP is to you, but that you understand the situation and can be flexible to meet the clients need but then you’d like to have them be equally flexible to contractual elements you might want amended (fancy legal word for changed). See how professional and business-y that sounds? You’ll be a hit. But we’re not done yet. That’s just words, the actions for you would be that you now have leverage in negotiations. You can look through the contract, or look at the project schedule, or the rates, or travel accomodations, or anything else about the project, and ask them to change it. As long as you’re not making crazy demands, they’ll probably cede ground in good faith because you created a narrative that you already ceded ground in terms of IP ownership. Tricky tricky! That’s how you can give up basically nothing, and in return actually make the gig noticeably better for yourself or your team.
- Ignore it and move on. While I don’t recommend this, because option 2 is super juicy, this is always an option. If you don’t feel confident in your business skills, you agree with most of what I said about IP, don’t think you’re building anything novel (don’t be afraid to ask around if you aren’t sure), then you can rid yourself of the headache and just get to work. Although I strongly recommend at least trying #2! You won’t face any crazy consequences for asking. Worst is you get a “No!”
With all that said, I should remind you again, I’m not a lawyer, so take my advice with a grain of salt. I’ve heard a lot of stories over the years and have been asked for my opinion on the whole IP question multiple times and I have yet to hear an argument that would make me change my mind about how I think about this. From what I’ve gathered, even if my information isn’t 100% accurate, it’s a good base to start thinking about this question from in your own work life. Happy legal-ing!!